Opinion
Case No. 1:99-cv-509.
March 23, 2005
MEMORANDUM OPINION
This was a habeas corpus action brought by a state prisoner pursuant to 28 U.S.C. § 2254. The habeas corpus petition, filed on June 30, 1999, challenged petitioner's convictions in 1985 on four counts of first-degree criminal sexual conduct, MICH. COMP. LAWS § 750.520b(1), (2), on which petitioner is serving four concurrent life sentences. By opinion and judgment entered September 11, 2000, this court dismissed the petition as untimely under the one-year statute of limitations applicable to habeas corpus actions. 28 U.S.C. § 2244(d)(1). The Sixth Circuit Court of Appeals refused petitioner a certificate of appealability, and the United States Supreme Court denied a petition for certiorari. On May 27, 2004, nineteen years after his convictions, petitioner filed a motion for relief from judgment pursuant to Fed.R.Civ.P. 60(b), contending that this court's calculation of time for purposes of the statute of limitations was rendered incorrect by a 2003 decision of the Sixth Circuit Court of Appeals.
In response to petitioner's Rule 60(b) motion, the state Attorney General filed an answer raising two objections to the relief sought. First, the Attorney General asserts that the Rule 60(b) motion must be deemed a "second or successive" application for habeas corpus relief within the meaning of 28 U.S.C. § 2244(a) and therefore outside the jurisdiction of this court, absent a grant of permission from the Sixth Circuit Court of Appeals. Second, the Attorney General argues that petitioner has not alleged grounds for relief under Rule 60(b). Upon review of the record, the court determines that the Rule 60(b) motion is not a second or successive application for habeas corpus relief. The court further determines that petitioner has not alleged grounds for relief from judgment under any of the provisions of Rule 60(b).
Procedural and Legal Background
On June 6, 1985, petitioner was convicted by a jury of four counts of first-degree criminal sexual conduct in the Oakland County Circuit Court. He pled guilty to a supplemental information charging him as an habitual offender, second offense. On July 10, 1985, the circuit court imposed four parolable life sentences. Petitioner appealed as of right, and his conviction was affirmed by the Michigan Court of Appeals on April 13, 1988. The Michigan Supreme Court denied leave to appeal on April 25, 1989.
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) was enacted effective April 24, 1996. AEDPA imposed a one-year statute of limitations within which a state prisoner might seek federal habeas corpus relief. 28 U.S.C. § 2244(d)(1)(A). The Sixth Circuit Court of Appeals thereafter held that a one-year grace period applies to convictions, such as petitioner's, which became final before the effective date of AEDPA. See Austin v. Mitchell, 200 F.3d 391, 393 (6th Cir. 1999). If petitioner had not pursued any post-conviction remedies in state court, this one-year grace period would have expired on April 24, 1997. During the grace period, however, petitioner filed a motion for post-conviction relief in the state trial court. At the time the state-court motion was filed on January 29, 1997, 280 days of the limitations period had already expired, leaving petitioner with a total of 85 days in which to file his federal habeas corpus petition. The state courts denied petitioner relief, with the state Supreme Court denying leave to appeal on October 26, 1998. On January 21, 1999, petitioner petitioned for a writ of certiorari in the United States Supreme Court, which denied the petition by order entered June 14, 1999.
Petitioner filed this habeas corpus action on June 30, 1999. Respondent moved to dismiss the petition on the basis of the running of the one-year statute of limitations. In an opinion dated September 11, 2000, this court analyzed the issue under the law as it then stood. A central question before the court was whether the one-year grace period remained tolled during the time that the certiorari petition was pending in the United States Supreme Court. As the Sixth Circuit Court of Appeals had not then decided the issue, this court relied on the great weight of authority from other circuits in holding that petitioner's application for certiorari in the United States Supreme Court to review the denial of state post-conviction relief did not toll the running of the limitations period. ( See Op., docket # 21, at 5-9, and cases cited therein).
Two days after this court entered its judgment, the Sixth Circuit Court of Appeals published its decision in Isham v. Randle, 226 F.3d 691 (6th Cir. 2000). Isham decided a closely related, but not identical issue — whether the AEDPA limitations period is tolled during the ninety-day period in which a petitioner could have (but did not) seek certiorari review of the denial of his state motion for post-judgment relief. Relying on the same cases this court had cited two days earlier, the Isham court answered the question in the negative: "We join those courts and hold that § 2244(d)(2) does not toll the limitations period to take into account the time in which a defendant could have potentially filed a petition for certiorari with the United States Supreme Court, following a state court's denial of post-conviction relief." 226 F.3d at 695. Nothing in the language or reasoning of Isham suggested that the court would have decided differently if the petitioner had actually sought certiorari. 226 F.3d at 694-95. By order entered October 11, 2000, this court denied a certificate of appealability, citing Isham. On October 13, 2001, the Court of Appeals denied petitioner a certificate of appealability as well. (Order, docket # 29). The United States Supreme Court denied a writ of certiorari on October 22, 2001.
Petitioner filed his motion for relief from judgment on May 27, 2004. Petitioner's motion relies upon the decision of the Sixth Circuit in Abela v. Martin, 348 F.3d 164 (6th Cir. 2003) ( en banc). The Abela decision confronted a situation in which the petitioner did in fact seek certiorari, thus raising the question whether the limitations period is tolled during the time in which a state prisoner seeks certiorari review of denial of his state motion for post-conviction relief. The en banc Sixth Circuit, rejecting the law of all other circuit courts of appeals, held that the limitations period was indeed tolled during the pendency of the certiorari petition. 348 F.3d at 169-171. The en banc court also repudiated Isham, in which no petition for certiorari had actually been filed, thereby establishing a new blanket rule for this circuit: "The statute of limitations is tolled from the filing of an application for state post-conviction or other collateral relief until the conclusion of the time for seeking Supreme Court review of the state's final judgment on that application independent of whether the petitioner actually petitions the Supreme Court to review the case." 348 F.3d at 172-73. On the basis of Abela, petitioner sought relief from judgment pursuant to Fed.R.Civ.P. 60(b)(5) and (6), arguing that this court's computation of the limitations period was erroneous and that his petition was timely filed under Abela.
The Attorney General filed a response to the motion, raising two issues. First, the Attorney General argued that the motion was a second or successive application for habeas corpus relief within the meaning of 28 U.S.C. § 2244(b)(3) and that permission from the Court of Appeals was therefore necessary before this court has authority to adjudicate the motion. Second, the Attorney General argued that petitioner had not stated grounds for relief from judgment under Rule 60(b). Because the "second or successive" issue was then pending before the Sixth Circuit Court of Appeals, on November 3, 2004, this court stayed proceedings on petitioner's motion, pending the appellate decision in Abdur-Rahman v. Bell. (Order, docket # 38). The Court of Appeals has now issued its decision in Abdur-Rahman, and petitioner's motion under Rule 60(b) is therefore ready for adjudication.
Discussion 1.
Respondent contends that petitioner's Rule 60(b) motion must be deemed a second or successive application for habeas corpus relief and therefore subject to the strictures of 28 U.S.C. § 2244(b)(2). In Abdur-Rahman v. Bell, 392 F.3d 174 (6th Cir. 2004) ( en banc), the en banc Court of Appeals held that a Rule 60(b) motion counts as a successive habeas petition "if its factual predicate deals primarily with the constitutionality of the underlying . . . conviction or sentence." 392 F.3d at 181 (quoting Rodwell v. Pepe, 324 F.3d 66, 70 (1st Cir. 2003)); see Smith v. Anderson, Nos. 05-3241, 05-3243, ___ F.3d ___, 2005 WL 517525, at * 4-6 (6th Cir. Mar. 6, 2005). By contrast, if the factual predicate of the motion "attacks the manner in which the earlier habeas judgment was procured," then it falls outside of AEDPA's limitations on successive habeas petitions and should be adjudicated pursuant to normal standards governing Rule 60(b) relief. Id. at 176-77; accord Alley v. Bell, 392 F.3d 822, 827-28 (6th Cir. 2004). Consequently, if the Rule 60(b) motion does not present a direct challenge to the constitutionality of the state-court conviction, but relates only to the integrity of the federal habeas judgment, it does not qualify as a second or successive petition. Abdur-Rahman, 392 F.3d at 181.
Judged under the standards established by the Court of Appeals in Abdur-Rahman, the Rule 60(b) motion in the present case does not qualify as a second or successive application for habeas corpus relief. The motion does not challenge any aspect of petitioner's state-court conviction, but merely challenges the integrity of a federal habeas corpus judgment. Granting the present motion would "simply result in the reopening of the federal habeas proceeding, not the vacation of the state criminal judgment." Abdur-Rahman, 392 F.3d at 182. Consequently, petitioner's motion does not fall within the strictures of AEDPA concerning second or successive applications for habeas corpus relief, and this court has jurisdiction to adjudicate the motion.
2.
Rule 60(b) authorizes the district court to relieve a party in a civil action from a final judgment, on the following enumerated grounds:
(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. FED. R. CIV. P. 60(b). In the present case, petitioner's Rule 60(b) motion relies on a change in decisional law occurring approximately three years after entry of this court's order dismissing petitioner's habeas corpus petition as untimely. Upon review, the court determines that none of the provisions of Rule 60(b) authorizes relief in these circumstances.
In his motion for relief from judgment (docket # 32), petitioner invokes the provisions of Rule 60(b)(5) and (6). Rule 60(b)(5) authorizes relief when the judgment has been satisfied, released, or discharged, "or a prior judgment upon which it is based has been reversed or otherwise vacated." Relying on this provision, petitioner asserts that this court's judgment was predicated upon the Sixth Circuit decision in Isham, which was repudiated by the en banc court in Abela. It is well settled, however, that Rule 60(b)(5) does not authorize relief from a judgment on the grounds that the law applied by the court in making its adjudication has been subsequently overruled or declared erroneous in another, unrelated proceeding. Professor Wright summarizes the rule as follows:
Petitioner could not have invoked grounds (1), (2), or (3), which must be raised within one year of the entry of judgment. FED. R. CIV. P. 60(b). See McDowell v. Dynamics Corp. of Am., 931 F.2d 380, 383 (6th Cir. 1991).
The second ground, that a prior judgment upon which the present judgment is based has been reversed or otherwise vacated, obviously is sound but also has very little application. This ground is limited to cases in which the present judgment is based on the prior judgment in the sense of claim or issue preclusion. It does not apply merely because a case relied on as precedent by the court in rendering the present judgment has since been reversed.
11 CHARLES ALAN WRIGHT, ARTHURR. MILLER, AND MARY KAY KANE, FEDERAL PRACTICE PROCEDURE § 2863 at 334-35 (2d ed. 1995) (emphasis added). The Sixth Circuit has long adhered to this rule. See Berryhill v. United States, 199 F.2d 217, 219 (6th Cir. 1952). Relief is clearly unavailable under Rule 60(b)(5).
The only other possible font of relief is pursuant to Rule 60(b)(6). Relief under Rule 60(b)(6) is addressed to the court's discretion and is available only in "extraordinary circumstances." Liljeberg v. Health Servs. Acq. Corp., 486 U.S. 847, 863-64 (1988). Relief under this rule is "circumscribed by public policy favoring finality of judgments and termination of litigation." Waifersong Ltd., Inc. v. Classic Music Vending, 976 F.2d 290, 292 (6th Cir. 1992). A change in decisional law is usually not, by itself, an extraordinary circumstance. See Agostini v. Felton, 521 U.S. 203, 239 (1997); Blue Diamond Coal Co. v. Trustees of the UMWA Combined Ben. Fund, 249 F.3d 519, 524 (6th Cir. 2001). There must be a change in decisional law "coupled with some other special circumstance" to grant relief under Rule 60(b)(6). Blue Diamond, 249 F.3d at 524; Hooper v. Euclid Manor Nursing Home, 867 F.2d 291, 294 (6th Cir. 1989) (claim of strictly legal error "not cognizable under Rule 60(b)(6) absent extraordinary circumstances.").
Petitioner has not pointed to any special circumstance justifying the grant of relief under Rule 60(b)(6) on the basis of a change in decisional law. To be sure, this court's judgment of September 11, 2000, was correct when rendered, as evidenced by the issuance of the Sixth Circuit's decision in Isham two days later, and the appellate court's subsequent denial of petitioner's application for a certificate of appealability. By denying the certificate, the Court of Appeals concluded that jurists of reason would not find the district court's procedural ruling to be debatable, on the basis of the law as it then existed. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). It was not until October 22, 2003, when the Sixth Circuit parted company with every other appellate court, that grounds even existed to question this court's judgment. By that time, petitioner's criminal convictions were eighteen years old. It should be remembered that petitioner took no action to raise a collateral challenge to his conviction until 1997, less than ninety days before the grace period under AEDPA was set to expire. The record therefore does not disclose that petitioner pursued his federal claims with any diligence. His petition was adjudged untimely under the authorities governing this question at the time the court acted.
Consequently, this is an especially poor record upon which to find the existence of special circumstances that would allow petitioner the benefit of a retroactive application of Abela for purposes of opening a federal judgment now five years old, thus allowing a challenge to convictions now twenty years old. In general, new rules of procedure have only prospective application and may not be applied retroactively to upset final judgments. See generally, Landgraf v. USI Film Prod., 511 U.S. 244 (1994); Teague v. Lane, 489 U.S. 288 (1989).
The operation of Rule 60(b)(6) is tempered by the general policy in favor of the finality of judgments. Waifersong, 976 F.2d at 292. That policy militates in favor of the finality both of this court's judgment and of the now two-decades-old criminal judgments which petitioner seeks permission to challenge. In a case involving criminal judgments not nearly as old as those in the present case, the Fifth Circuit has found that the district court abused its discretion in granting Rule 60(b)(6) relief on the basis of a change in decisional law concerning computation of the AEDPA statute of limitations. See Hess v. Cockrell, 281 F.3d 212 (5th Cir. 2002). The policy in favor of the finality of judgments applies with even greater weight in the present case.